Monthly Archives: February 2013

What the Philippines must effectively address in its claims to historic title over Sabah: the right to self-determination, which is customary and is subject of both erga omnes partes and erga omnes omnium obligations.

In his separate opinion to the Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) case before the ICJ in 2002, ad hoc judge Thomas Franck had this to say, in his rejection of the Philippine intervention:

“13. The independence of North Borneo was brought about as the result of the expressed wish of the majority of the people of the territory in a 1963 election. The Secretary-General of the United Nations was entrusted under the Manila Accord of 3 1 July 1963 with the task of ascertaining the wishes of the people of North Borneo, and reported that the majority of the peoples of North Borneo had given serious and thoughtful consideration to their future and: “[had] concluded that they wish to bring their dependent status to an end and to realize their independence through freely chosen association with other peoples in their region with whom they feel ties of ethnic association, heritage, language, religion, culture, economic relationship, and ideals and objectives” (quoted by the Representative of Malaysia to the General Assembly, 1219th meeting, 27 September 1963, Official Records of the General Assembly, Eigteenth Session, UN doc. No. AIPV. 121 9).

14. In 1963, Britain filed its last report to the United Nations on North Borneo as an Article 73 je) Non-Self-Governing Territory (Note by the Secretary-General, Political ancl Consfitutionak Information on Asian Territories under United Kingdom Administration, UN doc. NO. Al54021 Add.4 (4 April 1963)). Thereafter, the United Nations removed North Borneo from the list of colonial territories under its decolonization juris- diction (see Yearbook of the United Nations 1964, pp. 41 1-435, which omits North Borneo from the Cornmittee’s list of territories), thereby accepting that the process of decolonization had been completed by a valid exercise of self-determination.

15. Accordingly, in light of the clear exercise by the people of North Borneo of their right to self-determination, it cannot matter whether this Court, in any interpretation it might give to any historic instrument or efficacy, sustains or not the Philippines claim to historic title. Modern international law does not recognize the survival of a right of sovereignty based solely on historic title; not, in any event, after an exercise of self- determination conducted in accordance with the requisites of international law, the bona fides of which has received international recognition by the political organs of the United Nations. Against this, historic
claims and feudal pre-colonial titles are mere relics of another international legal era, one that ended with the setting of the sun on the age of colonial imperium.”

Click here for the link to the full text of Judge Franck’s separate opinion.

I am not saying the Philippine case is hopeless. I am just saying there’s a very big legal hurdle to its claim to sovereignty over Sabah that needs serious consideration.

While the Chinese Communist Party wrestled with the challenges of political transition at home (including sex scandals, corruption and murder in the highest echelons of power), the Chinese government has been picking quarrels with its much smaller neighbours over maritime territory.

Tensions over territorial disputes across the Asian region have led observers to wonder whether a China with immense economic needs and superpower ambitions is actually able to follow rules-based maritime regime under the UN Convention of the Law of the Sea (UNCLOS) vital to regional cooperation and stability.

Law of the Sea in the disputes

The UNCLOS establishes the reach of a coastal state’s 12- nautical mile territorial sea, 24-nautical mile contiguous zone, 200-nautical mile Exclusive Economic Zone, 200-nautical mile Continental Shelf and its 150-nautical mile extension. It also provides rules for the exploitation of mineral and marine resources found in the sea and the seabed as well as for resolving conflicting maritime claims.

With Japan, China appears to have recently come dangerously close to a shooting war in a dispute over the five small uninhabited islands and three rocks of the Senkaku in the East China Sea.

Indeed, China, which treats Taiwan as an estranged province, denies the Japanese charge.

Meanwhile, in the South China Sea, an area rich in oil, gas and fishing resources, China is locked in a long-standing dispute with several Southeast Asian nations over the Spratly group of islands, namely, Malaysia, Vietnam, Taiwan, the Philippines, Brunei and Indonesia.

China, a signatory to the UNCLOS, justifies its territorial and maritime claims in the region through its Nine-Dash Line declaration.

Click here for the full essay as it appeared in the University of Exeter’s ThinkIR Blog.

Earlier, we blogged about the ruling of the Supreme Court in the case of Nicholas v. Executive Secretary(G.R. No. 175888, Feb. 11, 2009), where the High Court, while it upheld the constitutionality of the Visiting Forces Agreement (VFA), also ruled that the Philippines and the US are to renegotiate the terms of the Agreement, especially in regard to the question of detention facilities for US personnel accused of committing a crime under Philippine law.

This ruling was pursuant to Art. V, Sec. 10 of the VFA. Yet nearly four years after the ruling, Philippine authorities have yet to comply with the High Court’s Order.

This afternoon, we filed a Motion asking the High Court to compel our Secretary of Foreign Affairs to comply with this unfulfilled part of the ruling.